Delhi District Court
In Re: State vs Shankar on 22 October, 2013
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:SAKET
COURTS : NEW DELHI
In Re: STATE VERSUS SHANKAR
F.I.R. No: 432/07
U/s 279/338 IPC
P.S. Sarita Vihar
Date of Institution of Case : 02.05.2008
Judgment Reserved for : 22.10.2013
Date of Judgment : 22.10.2013
JUDGMENT:
(a) The serial no. of the case : 1540/2/11
(b) The date of commission of offence : 08.06.2007
(c)The name of complainant : ASI Satbir Singh
(d) The name, parentage, of accused : Shankar s/o Raghuraj, R/o
A728, JJ Colony, Madanpur
Khadar, New Delhi.
Present Address : As above
(e) The offence complained of : U/s 279/338 IPC
(f) The plea of accused : Pleaded not guilty
FIR No. 432/07 State Vs. Shankar 1/6
(g) The final order : Acquitted
(h) The date of such order : 22.10.2013
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 08.06.2007 at about 06.25 a.m. at Kalandi Kunj near Traffic police booth, New Delhi within the jurisdiction of police station Sarita Vihar, accused Shankar was found driving RTV bus bearing no. DL1VA3513 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so he hit against a motorcycle bearing no. DL3SAS7686 which resulted in grievous injuries upon motorcyclist namely Pawan Sharma and thus thereby the accused committed offence punishable u/s 279/338 IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide orders dated 06.02.2012 notice u/s 279/338 IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. So far prosecution has failed to examine any witness in this case.
4. Today matter was listed for PE however, no PW was present. Record reveals that complainant/injured Pawan Sharma is not traceable. Today FIR No. 432/07 State Vs. Shankar 2/6 also, summons as were issued against him have been received back with the report that he is not residing at the address available on record. I have also gone through report on the summons dated 24.04.2012, 24.07.2012, 11.10.2012, 13.03.2013, 26.03.2013, 11.04.2013, 27.07.2013 etc. The summons were directed to be executed through the office of DCP/SHO/IO however on every occasion the summons were returned back with the same report that the injured could not be traced.
5. Hence, despite numerous opportunities, prosecution failed to examine the complainant/injured Pawan Sharma. Prosecution was granted ample opportunity to produce the said witness however, prosecution failed to bring him on record.
6. As per the prosecution story, it was Pawan Sharma who was allegedly injured on 08.06.2007 on account of rash and negligent driving by accused Shankar. Hence, the deposition of complainant/injured Pawan Sharma was sine qua non for establishing the charges against the accused as he could have proved how and under what circumstances, accident dated 08.06.2007 occurred, who was driving the vehicle involved at the time of accident, because of whose fault the accident occurred i.e. whether due to rash and negligent driving of the accused as alleged by the prosecution or otherwise. He was the star/material witness of the prosecution case and in his absence the prosecution shall not be able to prove the alleged accident or the identity of the accused FIR No. 432/07 State Vs. Shankar 3/6 leave apart rash and negligent driving. His absence thus proved fatal and sounded death knell for the prosecution case as admittedly there is no other eye witness of the accident. Reliance can be placed upon "State of Rajasthan v. Joita (Rajasthan) 2002 Cri.L.J. 3514 and Ishwar Singh v. State of Haryana, (P&H) 2000 (2) R.C.R. (Criminal) 571, K. Nageshwara Rao v. State of A.P. 2003 (4) R.C.R. (Criminal) 588, Niranjan Singh v. State (Delhi Adminstration) (Delhi) 1997 (1) R.C.R. (Criminal) 320and Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R.(Criminal) 605
7. Prosecution proposed to examine 9 witnesses in all who proposed to be examined are formal/official witnesses who came into the picture only after the alleged accident had occurred and information in this regard was received by them. None amongst them is the eye witness.
8. Accordingly continuation of trial in the present matter which is already 6 years old shall be an exercise in futility as in all likelihood the prosecution story shall fall flat. PE is accordingly closed. As far as prosecution evidence is concerned record reveals that no worthy incriminating material has been brought forward against the accused so far. Accordingly SA is dispensed with as the same shall be an empty formality.
9. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true"
FIR No. 432/07 State Vs. Shankar 4/6
and "must be true".
10. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R. (Criminal) 662).
11. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden FIR No. 432/07 State Vs. Shankar 5/6 lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
12. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
13. I order accordingly.
Announced in the open (Gaurav Rao)
Court today MM (SE)/Delhi/22.10.2013
FIR No. 432/07 State Vs. Shankar 6/6
F.I.R. No: 432/07
U/s 279/338 IPC
P.S. Sarita Vihar
22.10.2013
Pr: Ld. APP for the State.
Accused is present on bail today with his counsel.
He has moved an application seeking cancellation of warrants. Perused the same. Warrants are recalled subject to fine of Rs. 500/. Accused is warned to be careful in future. Fine paid.
No PW is present.
Record reveals that injured is not traceable.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Fresh bail bonds u/s 437A Cr.P.C. furnished, considered and accepted.
File be consigned to Record Room.
(Gaurav Rao) MM(SE)/Delhi.
22.10.2013
FIR No. 432/07 State Vs. Shankar 7/6
FIR No. 432/07 State Vs. Shankar 8/6